Tuesday, August 25, 2009

Do you know? What are an employer’s rights when an employee fails to give timely notice of FMLA leave?

Employees cannot simply take FMLA leave on a whim. They must provide their employers at least some notice, depending on the circumstances. An employee who needs foreseeable FMLA-qualifying leave is required to provide at least verbal notice sufficient to make the employer aware of the need for the leave and its anticipated timing and duration. An employee who needs unforeseeable FMLA-qualifying leave must, as soon as practical, provide sufficient information for the employer to reasonably determine whether the FMLA applies to the leave request.

What happens, though, if an employee fails to give timely notice?

Foreseeable leave – 30 days: When the need for FMLA leave is foreseeable at least 30 days in advance, and the employee fails to provide at least 30 days’ advance notice, the employer may delay FMLA coverage until 30 days after the date the employee provides notice. Thus, if an employee should have provided 30 days’ notice, but only provided 29 days’ notice, the employee can delay FMLA coverage for a full 30 days. This section is the most penal.

Foreseeable leave – less than 30 days: When the need for FMLA leave is foreseeable less than 30 days in advance, and an employee fails to give notice as soon as practicable under the facts and circumstances, the employer’s right to delay FMLA coverage for leave will vary from case to case. For example, if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week.

Unforeseeable leave. When the need for FMLA leave is unforeseeable, and an employee fails to give notice as soon as practicable under the facts and circumstances, the employer’s right to delay FMLA coverage for leave will vary from case to case. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer's policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.

These rules provide employers and important tool. Delaying an employee FMLA coverage means that any absences can be considered unexcused. For an employee who fails to give timely notice of a foreseeable FMLA leave, the employee could accumulate enough absences to warrant termination before the FMLA coverage ever kicks in.

To take advantage of these provisions,the Department of Labor requires that the employee had actual notice of the FMLA notice requirements, through a proper workplace posting and a properly distributed FMLA policy. If you are unsure whether your postings and policies pass muster, check with your employment counsel.

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